The DACA Decision and Requiring Agencies to Turn 'Square Corners': Reading Reliance Interests into Immigration Law

Abstract

In holding that the Trump administration's rescission of President Obama's Deferred Action for Childhood Arrivals (DACA) program impermissibly cut corners, the Supreme Court prompted a robust debate on the interaction of administrative and immigration law. Chief Justice Roberts's opinion for the Court in Dep't of Homeland Security v. Regents of the Univ. of California centered on the reliance interests of DACA recipients, who study, work, care for their families, and serve in the military. This Article locates Regents in a tradition of executive branch stewardship over intending Americans that dates back to the Founding Era.

Stewardship requires consistency and equitable balancing, including synergy between expectations and the public interest. In Regents, Chief Justice Roberts found consistency lacking in the differences between DHS's 2017 and 2018 explanations for ending DACA. Applying administrative law's Chenery doctrine, Chief Justice Roberts considered only the 2017 version and found that DHS had not fulfilled its "responsibility" to expressly deliberate about DACA recipients' expectations and alternatives to an outright rescission. Chief Justice Roberts's skepticism about agency rationales echoed his view in the 2019 census case that the Commerce Department's rationale for asking a citizenship question was "pretextual." Requiring more careful deliberation from DHS in Regents, Chief Justice Roberts cited DACA recipients' contributions to American economic and social well-being.

In dissent, Justices Thomas and Kavanaugh asserted that the majority had required too much of DHS. Justice Kavanaugh argued that Chief Justice Roberts's reading of the Chenery doctrine was too broad. Justice Thomas argued that DACA was too large a program to fit within the Immigration and Nationality Act's carefully crafted framework. The Article assesses these cogent arguments, but ultimately concludes that Chief Justice Roberts was correct that DHS's 2017 explanation did not adequately weigh the reliance interests involved in the DACA rescission.